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| Horizontal Gaze Nystagmus Test (one of three National Standardized Field Sobriety Tests) |
ADVANTAGES of going to DMV Refusal Hearing in a DWI Refusal Case in New York (Part 3):
Cross-Examining the Field Sobriety Tests
This is part three of my blog series dealing with why going to the DMV Refusal Hearing in a DWI Refusal case in New York can be a very effective tool in defending the main criminal DWI case. You can read PARTS ONE and TWO here.
Today, I will discuss how the DMV Refusal hearing can be effective in cross-examining the arresting officer about how he/she administered the Field Sobriety Tests. Remember, in a DWI Refusal case, the Police usually have to rely on the Standardized Field Sobriety Tests (SFTS) as a big part of their case. So if you can discredit these tests or get them dismissed altogether, then that gives the DWI defense client a big advantage in protecting themselves from a criminal conviction.
WHAT ARE THE THREE STANDARDIZED FIELD SOBRIETY TESTS?
The National Highway and Traffic Safety Administration has made only three Field Sobriety Tests standard for all law enforcement across the country. These three tests are the only ones that have ANY sort of scientific background into showing that a person is supposedly over the 0.10 BAC limit (that was the limit when they did the research) or not. FYI, the research took place in the early 1980's and the conclusions were extremely suspect ... but that's the story for another post. Bottom line, these tests have been accepted in New York and will continue to be used for the foreseeable future. There's no point in fighting their validity as measurements of sobriety.
Two of the three tests are balance and coordination tests. The other test is a measurement of the body's autonomic nervous system's response to alcohol by looking at your eyes. I'll go through each one.
HORIZONTAL GAZE NYSTAGMUS TEST
The Horizontal Gaze Nystagmus Test or "HGN" is probably (in my opinion) the best measurement of somebody's level of intoxication from a scientific standpoint (but for SFTS that's not saying much). It doesn't rely on somebody's athletic ability or any other physical clues that you could control or that could be affected by nervousness. In a nutshell, the test looks for involuntary JERKING of the eyes (called "nystagmus") caused by alcohol. In a very drunk person, the nystagmus is relatively easy to see (according to my wife who is an Emergency Physician). However, in somebody who has some alcohol but may not be intoxicated (past the point of safely operating a car) then it can be much more subtle--or not even present at all. This is the major problem with police officers giving this test instead of a medical professional trained to identify nystagmus (and causes other than alcohol).
There are four main steps to the HGN test:
1. The officer checks your eyes for equal tracking. (pre-test)
2. The officer checks your eyes for lack of smooth pursuit (if they move smoothly from side to side)
3. The officer checks to see if your eyes involuntarily jerk when they move all the way to each side (nystagmus at maximum deviation)
4. The officer check to see if your eyes involuntarily jerk before they move all the way to side (prior to 45 degree angle --from your shoulder) [nystagmus onset prior 45 degrees]
There are other things they have to do for this test to be reliable:
-hold the stimulus 12-15 inches from tip of your nose and slightly above
-move stimulus smoothly
-check for all three clues in each eye (at least twice)
-must look for clues in correct order (lack smooth pursuit, max deviation, onset 45 degrees)
-can't hold the stimulus for too long at certain points
If the officer observes 4 or more clues (according to the NHTSA manual) then they can correctly identify somebody with a BAC over 0.10 about 77% of the time.
Yes, you read that right. Only 77%. That's a pretty large margin for error. And that's the most reliable of the SFTS as you will see below...
HOW DO WE CROSS-EXAMINE THE HORIZONTAL GAZE NYSTAGMUS TEST AT THE DMV REFUSAL HEARING?
It depends on the witness. If the officer seems really knowledgeable I usually cross them on each step and look for mistakes in how it was administered. If the officer does NOT seem that well-read on the SFTS then I usually ask them an open-ended question like "please describe how you perform the HGN test." I like to give them enough rope to hang themselves with... That way when they make a mistake on the record, I can bring it up in the criminal case and get them to admit that they did it wrong. Most officers forget the nitty-gritty details of how these tests are supposed to be properly administered. That is an advantage to the DWI defense client.
WALK AND TURN TEST
This is a simple listen to instructions/ motor skills and coordination test. Here's the test:
-When I tell you to start, take nine heel-to-toe steps down the line, turn around, and take nine heel-to-toe steps back up the line (officer demonstrates 2 or 3 heel-to-toe steps)
-when you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this (officer demonstrates the turn)
-while you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud
-once you start walking, don't stop until you have completed the test
-do you understand the instructions? (officer supposed to make sure you understand)
-begin and count your first step from the heel to toe position as "one."
[by the way, while the officer is giving these instructions, you're supposed to be standing heel-to-toe the entire time without falling over]
HOW THEY GRADE THE TEST: You receive a "CLUE" if you do any of the following...
1. Cannot keep balance while listening to instructions
2. Starts before instructions finished
3. Stops while walking to steady self
4. Does not touch heel-to-toe
5. Steps off the line.
6. Uses arms to balance
7. Improper turn.
8. Incorrect number of steps.
The officer is taught by the NHTSA manual that if the subject exhibits TWO OR MORE clues then they "FAIL" the test and are allegedly over 0.10 BAC.
The manual states that this test will correctly identify 68% of people over 0.10% BAC.
Yes, only 68% if done perfectly! Which means --according to math, 32% of people who "fail" this test are sober!
HOW DO WE CROSS-EXAMINE THE WALK AND TURN TEST AT THE DMV REFUSAL HEARING?
Generally, it's not the test I focus on at the DMV hearing. The HGN test is much more useful to cross given the limited amount of time we have at the hearing, plus the Walk and Turn is just FULL of problems.
As you can see from the instructions, there are major problems with the logic of the test itself. If you have any kind of disability, if it's cold, if you're nervous, if you're hard of hearing, if you are on a hill, if the ground isn't clear, if it's super dark etc etc, then the test could be unreliable. Plus--you could do 90% of it totally right and still fail. That's why we DWI defense lawyers don't put any stock in the Walk and Turn compared to the HGN. At least the HGN is somewhat based on science by measuring the body's involuntary response to alcohol.... the Walk and Turn is far less reliable. That makes it less dangerous than the others when defending somebody for a DWI.
ONE-LEGGED STAND TEST
Again, the One-Legged Stand (OLS) test is another balance/coordination test. Here's the test:
The Officer instructs you to:
-stand with feet together
-arms at side
-to raise your foot forward approximately six to 12 inches off ground without bending leg
-you are to count certain number of seconds (determined by officer-usually 30) without putting foot down
-count out loud
[most officers have you count to 30]
The manuals for this test state that people with leg injuries, 50 lbs over more overweight, age 65 or older, or any other inner ear disorder will likely invalidate the test.
What are the "CLUES" for this test?
-swaying
-movement of the arms six inches or more from the side of the body
-hopping
-puts foot down prior to 30 seconds
If you exhibit 2 of 4 clues then you FAIL. If you fail the test allegedly proves that you're over 0.10 BAC.
Using the factors above, the manual states the test is 65% correct in identifying people over 0.10 BAC.
65%! The worst accuracy of all three SFTS. This test is hard for a sober person to do right...
HOW DO WE CROSS THE ONE-LEGGED STAND FIELD SOBRIETY TEST?
Again, at the DMV hearing, I generally don't get into it unless we have a specific reason that has been discussed in advance with the client. Like one time, I had a client with vertigo (an inner ear problem) that essentially invalidated both the WAT and the OLS tests. So we questioned the officer on that issue. But for a normal client without lower extremity injuries or balance problems then it's probably not going to be a big issue we focus on at the DMV refusal hearing. We will wait until the suppression hearing at the criminal DWI refusal case to thoroughly cross it.
The OLS is so unreliable anyway that it is the least effective of the SFTS. Sure, we have to cross it during the criminal case (and most people can't do the OLS sober), but we usually are not going to waste our limited cross time on it during the DMV refusal hearing for reasons stated above.
Here are some basics to cross the OLS:
-was ground level
-any medical problems with Defendant
-nervousness
-heat or cold
-darkness
-light in eyes
-dizziness
WHAT'S THE ADVANTAGE TO CROSSING THE POLICE OFFICER ABOUT THESE TESTS AT THE DMV REFUSAL HEARING IN A DWI REFUSAL CASE?
In short, it gives us a preview (and more ammunition) of what the officer is going to say down the road at the criminal case suppression hearing. The more we get them to testify to, the more we have to use to cross-examine them on the important issues --and hopefully sway the Judge, Jury or Prosecutor that the case is weaker than they originally thought.
The more information we can get in the early stages of the DWI defense case, the better. That's just common sense. Knowledge is power. The more knowledge we have about the officer and what they're going to say, the more effective we can be as defense counsel.
In my next blog post, I will discuss how the DMV Refusal Hearing can allow us to get the Evidence against you earlier than usual in a DWI defense case. Thanks for reading and have a great day!
By Mike Cyr
Newman and Cyr is a boutique DWI defense firm located in Ithaca, NY and serving the Finger Lakes region.
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